Is this scar "significant?"

The Limitation on Lawsuit Tort Threshold Claims another Victim

Whether a scar is significant, or a significant disfigurement is in the eye of the beholder

significant scarring

Is this a significant scar, or significant disfigurement?

At approximately 8:25 a.m. on July 7, 2006, defendant’s car struck plaintiff, who was sixteen years old, as he rode his bicycle on Route 70 in Cherry Hill. Plaintiff was covered under an automobile insurance policy that contained the limitation on lawsuit option, N.J.S.A. 39:6A-8(a). Plaintiff sustained injuries to his knee, and teeth.

The plaintiff’s injuries to his teeth consisted of:

  • Concussion trauma to four (4) teeth requiring composite bonding
  • One (1) tooth was extracted and replaced with an implant
  • A subsequent development of a dark area at the mesio-gingival of tooth #7

Mark Waltzer, D.M.D., detailed these injuries and treatments in his report of June 10, 2008. Waltzer noted,

Although active treatment is concluded, nothing will last indefinitely. Crowns generally have a life expectancy of 5-15 years. Composite bonding generally lasts 3-10 years. In an active young man, it is probably closer to the shorter end of the range. There is a possibility that root canal therapy, composite bonding, and/or crowns will be needed later . . . .

Plaintiff also sustained an injury to his right knee, which various doctors offered various diagnosis, including different interpretations of an MRI of plaintiff’s knee.  Plaintiff was unable to secure a certificate of permanency for his knee injury.

Defendant moved for summary judgment

Arguing that plaintiff had failed to file a certificate of permanency and that plaintiff’s injuries were not permanent. N.J.S.A. 39:6A-8(a).

Accompanying plaintiff’s opposition to the motion was a certification from Waltzer in which he stated

[Plaintiff] has sustained permanent injury that will have permanent residual sequelae. It is my further opinion . . . that, although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury cannot be completely resolved by way of further medical treatment[, ] intervention and there will always be some aspect of residual permanent injury . . . . Tooth #8 was fractured and could not be restored. An implant was used . . . . The crown will have to repeatedly be replaced during [plaintiff’s] lifetime . . . .

[T]here is also damage to tooth #7 . . . . It is still possible that further structural or pulpal damages may have occurred to [this] tooth . . . .

Plaintiff served no certificate of permanency regarding the injury to his knee.

Plaintiff argued that he had met the LOL threshold in two ways: first, that he had suffered a permanent injury to his teeth; second, that he had suffered “significant disfigurement or significant scarring, ” specifically the discoloration of his capped tooth, the dark area on his gum, and the scars on his hands and right knee.

Plaintiff was present for oral argument of the motion and the judge viewed the scars and discolorations. He concluded they did not amount to “significant disfigurement or significant scarring.” The judge also concluded plaintiff had failed to establish a “permanent injury” under N.J.S.A. 39:6A-8(a). He entered an order granting defendant summary judgment and dismissing plaintiff’s complaint. An appeal followed.

The Appellate Division affirms the motion judge

The Appellate Division referred to prior case law  to discern the standard to apply when assessing “significant disfigurement” or “significant scarring:”

The Court has held that “to satisfy the [LOL] threshold . . . in respect of either ‘significant disfigurement or significant scarring, ‘ a plaintiff bears the burden of demonstrating that, on an objective basis, the disfigurement or scarring substantially ‘impair[s] or injure[s] the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, deforming h[im] in some manner.'” Soto v. Scaringelli, 189 N.J. 558, 574 (2007) (quoting Gilhooley v. Cnty. of Union, 164 N.J. 533, 544 (2000)). “[A] number of factors are relevant, ‘including appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.'” Ibid. (quoting Gilhooley, supra, 164 N.J. at 544).

The Appellate Division discussed how to establish a “permanent injury:”

The statutory definition of permanency under the LOL rests upon the ability of the injured body part to function normally after treatment. See N.J.S.A. 39:6A-8(a) (“An injury . . . [is] permanent when the body part or organ . . . has not healed to function normally and will not heal to function normally with further medical treatment.”) (emphasis added). Teeth are “used in mastication and assisting in articulation.” Johnson, supra, 192 N.J. at 272 (quotation omitted). Simply put, although Waltzer’s certificate of permanency labels plaintiff’s dental injuries as “permanent, ” and notes the likelihood of further treatment, the certification is bereft of any evidence that plaintiff’s teeth no longer function properly.

And concluded its opinion by stating:

We recognize, of course, that tooth #8 is no longer in plaintiff’s mouth, that it has been replaced by an implant, and, that it is permanently “los[t].” However, in our view, that simply cannot be the determining factor envisioned by the Legislature in its passage of N.J.S.A. 39:6A-8(a). If it were, the loss of a single tooth, in and of itself, would be sufficient to vault the LOL threshold. We do not think the Legislature intended such a result.Affirmed.

N.J. Tort Threshold Options

Ssssh....I'm thinking

Commentary

The value of this case [Sharp v. Steriotis, A-3062-09T2 (NJSUP)] rests with gaining an understanding of the proof you need to qualify a scar, significant disfigurement, and a permanent injury to effectuate a recovery for non-economic loss under the Limitation of Lawsuit Tort Threshold. The plaintiff’s dental injury, which was observed by the motion judge didn’t do it. Nor did the photographs of the dental injury impress the appellate division.

The plaintiff would have fared much better with a certification of permanency from his orthopedic surgeons; which he was unable to obtain.

This case is a good example of what a family loses when it chooses the Limitation on Lawsuit Tort Threshold. These dental injuries are significant, and so is a torn meniscus; if present. What is the value of this case if the plaintiff chose the No Limitation of Lawsuit Tort Threshold?

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About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information, tips and tricks to help drivers beat NYC parking tickets.

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